11/17 Session #2: Common Allegations, Part One

In motion AE19, the defense asks the court to strike certain common allegations from the charge sheet. One of Al-Hadi’s lawyers, Maj. Ben Stirk, explains why. The incorporation of “common allegations” into the charge sheet is essentially an end-run by prosecutors------one meant to permit the members to see the government’s entire case, at trial, before the evidence is submitted. It will act as a highly prejudicial “checklist," in Stirk's view. The move, he adds, is not authorized by the Military Commissions Act ("MCA"), and therefore should be knocked out of case.  Of course, the MCA does allow for the submissions of Bills of Particulars---more specific elaborations of charges---but Stirk's side hasn’t asked for one, and such Bills aren’t evidence standing alone. At any rate, simply trotting out a prosecution account of the evidence is inflammatory, and totally unfair.  (Apparently another commission case addressed this issue: when asked, Stirk tells Judge Waits that in the 9/11 case, where a kind of conspiracy had been charged initially, the defense asked to have common allegations stricken---even though such allegations there aren’t incorporated by reference in that case, much as they are here.) It is not to enough to claim, as the government does, that no law prohibits a common allegations approach, says Stirk. To be sure, federal courts and international bodies concededly use such allegations from time to time, but courts martial---which furnish the institutional blueprint for the commissions' procedures--do not. (Judge Waits notes that military commission rules require no particular “format;” is there a courts-martial analogue, so far as the contents of charging documents are concerned?  Stirk doesn’t know, but says he will dig up an answer.)  Another error by the government, in Stirk's view: its argument that this case is “complicated,” so complicated as to require the use of common allegations. In fact, the case is a straightforward one. Stirk thus susses out the government’s real intention here---to stress its theory of liability, as to why Al-Hadi ought to be held liable for others’ conduct. That’s unnecessary, and prejudicial. Stirk sits. The defense suggests that common allegations pleading is unusual.  Well, fine; we agree, says prosecutor Mikeal Clayton. We agree because Al-Hadi’s case's is unusual.  It is a transnational terrorism conspiracy case, involving multiple actors and complex questions under the law of war.  The relevant comparators here are therefore not ordinary courts martial or everyday assault cases tried in domestic tribunals---but courts that have dealt with situations like this one. Clayton has in mind international and federal decisions involving wartime and terrorism. And these rulings, he says, in turn make clear that cases like Al-Hadi's may and should be charged in a different manner.  (Picking up where Stirk left off, Clayton adds that courts martial rules, like commission rules, in fact allow for charges to be made without regard to particular “format” requirements.)  And all this makes sense: wide-ranging complex terrorism cases demand procedural flexibility, no less so with respect to charging documents. Here, the Convening Authority has followed the appropriate court guidance in approving such documents in this case. And contrary to Stirk’s suggestion, the United States will bear the burden of proving each element of the charges beyond a reasonable doubt---that is so without regard to the language employed in the allegations.  (A side note: Clayton argues that the 9/11 case, cited by Stirk, is not especially instructive here, given the odd procedural posture.) Clayton turns to the nuts and bolts. Conspiracy, he says, is really two concepts with the same title: an “agreement crime” and a “theory of vicarious liability.”  You can have both or one but not the other. Take a drug conspiracy with 100 members: a prosecutor can charge each member with the agreement and one or more overt acts; the prosecutor can seek to punish individual, substantive crimes, and hold other conspirators liable vicariously; or the prosecutor could combine the two foregoing strategies. The key is that, provided the strategic choice of one approach or another isn’t made for unlawful reasons, the charging decision in a conspiracy case is entitled to judicial deference, according to Clayton. (Another aside: why the complaints from the defense about too much detail in a charge sheet?  Shouldn’t that be a good thing?)  The striking of surplusage is only appropriate where allegations bear no relation to the crimes charged---a contrast to this prosecution, in which the common allegations clearly relate to the substantive offenses. “You simply don’t wade in and excise these things out,” argues the prosecutor. Take the Razak terrorism case: the hostage-taker, murderer and terrorist was changed with one count of aircraft piracy, but the charge sheet in that case was chock full of details about the defendant’s treachery.  And lo, the D.C. Circuit concluded that, because those details related to the indicted crime, the defense’s motion to strike had to be denied. Clayon makes one last appeal to deference. The Convening Authority’s referral decision is entitled to it, says Clayton.  A few words more---this time about international and domestic precedents supporting the use of common allegations, and the general rule that allegations must relate to the charged offenses---and the prosecutor pauses for a brief recess.